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Regulation on improving job portability for high-skilled foreign workers set to take effect in January

17 Nov 16

UNITED STATES

IMPACT – HIGH

DHS announced that a final rule containing provisions allowing greater flexibility for high-skilled foreign workers will be published in the Federal Register Friday. It becomes effective Jan. 17, 2017.

The rule provides significant reforms to job portability for employees who have an approved employment-based immigrant visa petition during the wait for a green card.

Key provisions:

An immigrant petition (I-140) will remain approved if a request to withdraw it is received or the petitioner terminates its business 180 days or more after either the date of the petition’s approval or the date of filing of an associated application for adjustment of status. Although the I-140 remains valid, the individual would need a new job offer or new petition in order to apply for a green card.

High-skilled employees who lose their job will be given a one-time grace period of 60 days during each authorized period of stay to seek new employment. This provision would apply to the following categories: E-1, E-2, E-3, H-1B, H-1B1, L-1 and TN nonimmigrant status. The 10-day grace periods currently available to H-1B workers would also be extended to other nonimmigrant classifications.

Individuals in certain visa categories who are unable to obtain an immigrant visa because of numerical limits and who face compelling circumstances will become eligible to apply for an employment authorization document (EAD). This provision applies to individuals in E-3, H-1B, H-1B1, L-1 or O-1 status who file during the authorized periods of admission. Examples of “compelling circumstances” include serious illness or disabilities, employer retaliation, other substantial harm to the applicant, or significant disruption to the employer.

Certain individuals may obtain automatic EAD extensions for up to 180 days, if they have timely applied to renew the EAD and maintain the same basis for employment authorization, which does not require adjudication of an underlying application.

Background: The regulation contains long-awaited reforms that allow greater job portability for high-skilled foreign workers and proposes significant policy changes that will affect foreign workers present in the U.S. on nonimmigrant visas or seeking to obtain employment-based green cards.

The regulation implements the American Competitiveness in the 21st Century Act and codifies much of the previous informal guidance by the Department of Homeland Security. The agency proposed the regulation in December and received nearly 28,000 comments on the proposal during the public comment period that ended Feb. 29.

B·A·L Analysis: The new regulation will become effective Jan. 17, 2017, three days before President-elect Donald Trump takes office. The regulation would be a significant development and would have far-reaching implications for foreign workers in the U.S. on nonimmigrant visas. While the new administration may oppose some or all of these provisions, the regulation will remain in effect until new regulations can be published and finalized, or until Congress acts to annul it. B·A·L will provide additional analysis in the coming week on the details of the final rule and is closely monitoring the new administration’s priorities and approach to this rule and other immigration-related policies.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact your BAL attorney.